Replication Data for: Congressional Intervention in Agency Adjudication: The Case of Veterans’ Appeals

Conventional wisdom often portrays Congress’s role as legislative. This view is incomplete. While Congress engages in general oversight and factfinding through hearings, reports, and the like to advance legislation, members of Congress also dedicate enormous amounts of time and energy to advocating on behalf of individual constituents in administrative proceedings. This is not legislating; it is the congressional bully pulpit, directed at the trenches of administrative adjudication. Described by Professor Jerry L. Mashaw as “mysterious,” this activity throws into question textbook accounts of the modern separation of powers and the administrative state. Our Feature is the first to examine systematically this form of congressional intervention in administrative adjudication. We make four contributions. First, we discuss the doctrinal land-scape around congressional interventions and explain what administrative and constitutional law misses about congressional control by focusing nearly exclusively on judicial review as the predominant constraint on agencies. Second, using a unique and comprehensive dataset of over two million cases appealed to the Board of Veterans’ Appeals (BVA) from 2003 to 2017, we provide an empirical portrait showing the scope and importance of congressional inquiries into pending veterans’ appeals. Between 4-11% of cases advanced on the docket and resolved by BVA are subject to a congressional inquiry. Veterans are twice as likely to receive expedited treatment when a member of Congress inquires on their behalf. Third, we investigate the distributive consequences of this system, which deviates significantly from the neutral, rationality-based model envisioned by the Administrative Procedure Act. Fourth, we spell out the implications of our findings for contemporary separation-of-powers doctrine and administrative law. The model of Congress as a site for the resolution of individual grievances—often thought to be a bygone relic of the Constitution’s Petitions Clause—remains alive and well.