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http://ssrn.com/abstract=1577723
 
 

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Allocating Power Within Agencies


M. Elizabeth Magill


affiliation not provided to SSRN

Adrian Vermeule


Harvard Law School

March 24, 2010

Yale Law Journal, Vol. 120, p. 1032, 2011
Harvard Public Law Working Paper No. 10-20

Abstract:     
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this essay, we examine a different question: How does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies, and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionals - lawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, mid-level bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially-developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, and Accardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law.

Number of Pages in PDF File: 52

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Date posted: March 24, 2010 ; Last revised: November 15, 2011

Suggested Citation

Magill, M. Elizabeth and Vermeule, Adrian, Allocating Power Within Agencies (March 24, 2010). Yale Law Journal, Vol. 120, p. 1032, 2011; Harvard Public Law Working Paper No. 10-20. Available at SSRN: http://ssrn.com/abstract=1577723

Contact Information

M. Elizabeth Magill
affiliation not provided to SSRN
Adrian Vermeule (Contact Author)
Harvard Law School ( email )
1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States
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