Hamline University School of Law
August 27, 2012
Arizona State Law Journal, Vol. 45, No. 1, 2013, Forthcoming
Interagency relationships are a central feature of the modern administrative state, which must continually address regulatory problems that implicate multiple agencies’ expertise and agendas. Drawing on organization theory in political science and real world examples of agency behavior, this Article provides a general theory of what I call “interagency administration” – or, the emerging system of governance created by agencies’ increasingly complex relationships with each other. This interagency administration framework reorients the conception of power in the administrative state by showing that agencies are not just competitors for power but are also secondary sources of power for each other (after the primary sources of Congress and the White House). The framework also subverts the conventional separation of powers view that interagency decision-making tends to decentralize power in the executive and thus weaken the President by showing that interagency decision-making also tends to benefit the President through improvements in what organization theorists call departmentalization, or the structuring of an agency so that it has influence over the set of tasks that relate to its general purpose. Furthermore, this Article uses the interagency administration framework to argue that courts, under hard look review, should reject agency rationales that are based on factors outside of the agency’s core expertise if the agency has failed to consult with other agencies that have superior, more relevant expertise.
Number of Pages in PDF File: 40Accepted Paper Series
Date posted: August 27, 2012 ; Last revised: October 2, 2012
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